Citation Nr: 0803607
Decision Date: 01/31/08 Archive Date: 02/08/08
DOCKET NO. 03-19 956 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Medical and Regional
Office (RO) Center in Wichita, Kansas
THE ISSUE
Entitlement to a rating in excess of 20 percent for arthritis
of the cervical spine.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. D. Watson, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1979 to March
1999.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2003 RO decision, which, in
pertinent part, granted the veteran's claim for an increased
rating for arthritis of the cervical spine and assigned a
disability rating of 20 percent. The veteran testified at a
Travel Board hearing in March 2004. A transcript has been
associated with the file. The Board remanded this case
previously in August 2004. It returns now for appellate
consideration.
The Board notes that, in March 2004, the veteran's
representative submitted a claim for service connection for
depression, to include as secondary to his service-connected
conditions. As this claim has not been adjudicated by the
RO, the issue is REFERRED to the RO for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
Unfortunately, another remand is required in this case.
Although the Board regrets the additional delay, it is
necessary to ensure due process is followed and that there is
a complete record upon which to decide the veteran's claim so
that he is afforded every possible consideration.
The schedular criteria for rating spine disabilities have
been amended twice during the pendency of the veteran's
appeal. First, the rating criteria pertaining to
intervertebral disc syndrome under 38 C.F.R. § 4.71a,
Diagnostic Code 5293, was amended effective September 23,
2002. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002).
Second, effective September 26, 2003, the rating criteria for
evaluating all spine disorders were amended. See 68 Fed.
Reg. 51,454-51,458 (August 27, 2003); see also corrections at
69 Fed. Reg. 32, 449 (June 10, 2004).
In increased rating cases such as this one, where the rating
criteria is amended during the course of the appeal, the
Board considers both the former and the current schedular
criteria because, should an increased rating be warranted
under the revised criteria, that award may not be made
effective before the effective date of the change. See Kuzma
v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also
VAOPGCPREC 7-03; VAOPGCPREC 3-00, 65 Fed. Reg. 33,422 (April
10, 2000); 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. §
3.114 (2006).
As the veteran's claim was pending at the time of both
regulatory amendments, he is entitled to the application of
the criteria most favorable to his claim. See Diorio v.
Nicholson, 20 Vet. App. 193, 197 (2006), citing Swann v.
Brown, 5 Vet. App. 229, 232 (1993) (recognizing that where
law is amended during pendency of appellant's claim, most
favorable version applies); Rodriguez v. Nicholson, 19 Vet.
App. 275, 287 (2005).
The veteran was notified of the regulatory changes in an
August 2004 letter from the RO, but the regulatory changes
pertaining to intervertebral disc syndrome were never applied
to his case despite evidence showing that his service-
connected cervical spine disability not only includes
degenerative joint disease but also disc symptomatology. See
May 2007 Supplemental Statement of the Case (SSOC); March
2005 VA compensation examination. On remand, appropriate
action should be taken to include consideration of these
regulatory changes.
In reviewing the record, the Board observes that the veteran
was last afforded a VA examination for compensation purposes
in March 2005. Since that examination, the veteran has
stated that his condition has worsened. Specifically, in
July 2006, the veteran complained that his neck spasms had
become more frequent. Furthermore, in February 2007, the
veteran complained of increased neck pain and reported
experiencing new pain in his jaw. Available medical evidence
suggests that these conditions may be related to his cervical
spine disability. As the veteran was last afforded an
examination almost three years ago and his statements suggest
an increase in symptomatology since that time, the Board
finds that an additional evaluation would be helpful in
resolving the issues raised by the instant appeal. The
veteran is entitled to a new VA examination where there is
evidence (including his statements) that the condition has
worsened since the last examination. Snuffer v. Gober, 10
Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377
(1994); VAOPGCPREC 11-95 (1995).
Accordingly, the case is REMANDED for the following action:
1. Schedule the veteran for a VA
examination to include neurologic and
joints evaluations to assess the current
severity of his cervical spine disability.
The claims file must be made available to
the examiner and the examiner should
indicate in his/her report whether or not
the claims file was reviewed. Any
indicated tests, including X-rays if
indicated, should be accomplished.
The examiner should be provided the rating
criteria in effect prior to September 23,
2002; as of September 23, 2002; and as of
September 26, 2003. The examiner should
report the veteran's current manifestations
of his disease of the cervical spine in
terms that address all 3 versions of the
rating schedule.
In assessing the range of motion testing,
the examiner should address the criteria of
DeLuca v. Brown, 8 Vet. App. 202 (1995).
Whether there is any pain, weakened
movement, excess fatigability, or
incoordination on movement should be noted,
and whether there is likely to be
additional range of motion loss due to any
of the following should be addressed: (1)
pain on use, including during flare- ups;
(2) weakened movement; (3) excess
fatigability; or (4) incoordination. The
examiner is asked to describe whether pain
significantly limits functional ability
during flare-ups or when the affected part
is used repeatedly. All limitation of
function must be identified. If there is no
pain, no limitation of motion and/or no
limitation of function, such facts must be
noted in the report.
The examiner should be requested to report
the range of motion of the cervical spine
in degrees of arc. All findings and
diagnoses should be reported in detail.
The existence of any ankylosis of the spine
should also be identified.
The examiner should also assess if the
veteran has any neurological manifestations
related to the cervical spine to include
radiculopathy or sciatica as well as any
bowel and bladder complaints. If so, these
neurological manifestations should be
identified and the severity thereof
described in detail.
If possible, the examiner should indicate
whether the veteran has had incapacitating
episodes over the last 12 months which
required prescribed bed rest by a
physician, and, if so, the number of
episodes and the duration of the episodes.
2. Then, after ensuring the VA
examination report is complete and that
any actions needed to comply with the
Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000), have been accomplished, the
RO should readjudicate the claim on the
merits, applying all applicable laws and
regulations (i.e. the three versions of
the rating schedule pertaining to spine
disabilities) and the veteran should be
afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the veteran until further notice.
However, the Board takes this opportunity to advise the
veteran that the conduct of the efforts as directed in this
remand, as well as any other development deemed necessary, is
needed for a comprehensive and correct adjudication of her
claim. Her cooperation in VA's efforts to develop her claim,
including reporting for any scheduled VA examination, is both
critical and appreciated. The veteran is also advised that
failure to report for any scheduled examination may result in
the denial of the claim. See 38 C.F.R. § 3.655 (2007).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).